Peacock v. Malloy et al

Filing 23

INITIAL REVIEW ORDER: The Court DISMISSES the complaint pursuant to 28 U.S.C. § 1915A(b)(1) for the reasons given in the attached order. The Clerk is directed to enter judgment for the Defendants and close this case. Signed by Judge Vanessa L. Bryant on 6/5/2020. (Dannenmaier, Katherine)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RANDALL PEACOCK,
Plaintiff,
v.
DANNEL MALLOY, ET AL.,
Defendants.

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Case No. 3:18cv406 (VLB)

RULING AND ORDER
Plaintiff Randall Peacock was confined at Brooklyn Correctional Institution
when he initiated this civil rights action. He has filed an amended complaint
naming Governor Ned Lamont, Lieutenant Governor Susan Bysiewicz, Attorney
General William Tong, Commissioner of Correction Rollin Cook, Chief State’s
Attorney Kevin T. Kane, Director of Parole and Community Services Joseph
Haggan, Chairman of the Board of Pardons and Paroles Carleton J. Giles and
Special Management Unit Parole Officer Frank Mirto as defendants.

See Am.

Compl., Doc. No. 14. On November 20, 2019 and December 31, 2019, Plaintiff filed
exhibits to supplement the amended complaint. See Doc. Nos. 16, 17. On April
13, 2020, Plaintiff filed a motion for leave to file a second amended complaint.
See Mot. Amend, Doc. No. 16. For the reasons set forth below, the court will deny
the motion to amend and dismiss the first amended complaint.
I.

Motion for Leave to Amend [Doc. No. 18]
Plaintiff seeks leave to file a second amended complaint to add a claim

regarding a parole hearing that occurred on January 31, 2020.

See Mot. Amend

at 1-2. Peacock alleges that during the hearing, a panel of three members of the

Board of Pardons and Paroles voted him to be released on parole on or after
February 29, 2020.

See id.; Ex., Doc. No. 18-1. As of April 13, 2020, he had not

been released on parole. See Mot. Amend. at 2. Plaintiff requests that the Court
direct the Department of Correction to immediately release him to a halfway
house. See id. at 3. Plaintiff has not attached a proposed amended complaint to
the motion.
Because Plaintiff has already amended the complaint once, he does not a
have a right to amend the complaint without leave of Court. Rule 15(a)(2) of the
Federal Rules of Civil Procedure provides that after the time to amend as of
course has passed, "[t]he court should freely" grant leave to amend "when justice
so requires." Rule 15(a)(2), Fed. R. Civ. P.

“A district court has discretion to

deny leave for good reason, including futility, bad faith, undue delay, or undue
prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 200 (2d Cir. 2007 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The Court
concludes that justice does not require granting Plaintiff leave to file a second
amended complaint.
The claim and relief sought in the motion are unrelated to the underlying
claims in the complaint that are addressed to Plaintiff’s sentence of imprisonment
and period of special parole.

Moreover, Plaintiff does not assert that any

defendant named in the first amended complaint was involved in the decision on
January 31, 2020, to grant him release on parole or was aware of the delay in his
release on parole. Nor has Plaintiff alleged that he attempted to address the
2

issue involving his release with any defendant or other prison or parole board
official informally or formally by filing a grievance. In addition, it is apparent that
the sole request for relief, his immediate release to a halfway house, is moot.
The State of Connecticut Department of Correction’s website reflects that
Plaintiff is no longer confined in a prison facility in Connecticut and has been
released to a temporary community housing program called the Chrysalis
Center.1 On May 21, 2020, Plaintiff filed a notice indicating his new address in
Hartford, Connecticut.

See Notice, Doc. No. 22.

The Court concludes that it

would be futile to permit Plaintiff to file a second amended complaint to add a
claim that is not asserted against any named defendant and to add a request for
relief that is moot. See, e.g., Lucente v. I.B.M. Corp., 310 F.3d 243, 258 (2d Cir.
2002) (a proposed amendment would be futile “if the proposed claim could not
withstand a motion to dismiss for failure to state a claim upon which relief may be
granted”); Rosen v. Pallito, No. 2:13-CV-277, 2015 WL 4665628, at *7–8 (D. Vt. Aug.
6, 2015) (denying motion to amend to add claim for prospective injunctive relief
on ground of futility because request for relief was moot).

Accordingly, the

motion to amend is denied.
II.

Amended Complaint [Doc. No. 14]

Information regarding Plaintiff’s current location as listed on the State of
Connecticut Department of Correction’s website may found at
http://portal.ct.gov/DOC (last visited May 25, 2020) using Plaintiff’s CT DOC
Inmate Number - 91208. Information about Chrysalis Center may be found at
https://portal.ct.gov/DOC/Miscellaneous/Parole-and-Community-Services within
the Directory of Community Providers.
1

3

Plaintiff challenges his eleven-year term of imprisonment and the period of
special parole to be served after his eleven-year term of imprisonment. For relief,
he seeks monetary damages and an injunction.
A.

Facts

On June 18, 2013, Plaintiff pleaded guilty to two counts of sexual contact
with a child in violation of Connecticut General Statutes § 53-21(a)(2).

See Am.

Compl. at 2 ¶ 1(c); Peacock v. Warden, No. CV144006142, 2016 WL 7742925, at *1
(Conn. Super. Ct. Nov. 30, 2016). A judge imposed two concurrent sentences of
twelve years of imprisonment followed by ten years of special parole. Id. On
December 20, 2013, a judge vacated the sentences imposed on June 18, 2013
because the total effective sentence on each count was in excess of that allowed
pursuant to statute (twenty years) and resentenced Plaintiff to six years of
imprisonment on the first count of illegal sexual contact with a victim and six
years of imprisonment followed by ten years of special parole on the second
count. Id. at ¶ 1(c) – 1(d); Peacock, 2016 WL 7742925, at *1. These sentences
were to be served consecutively. Id.
On September 29, 2017, Plaintiff filed a motion to correct illegal sentence.
Am. Compl. at 6 ¶ 1(p). On March 14, 2018, a Superior Court judge granted the
motion, vacated the prior sentences and imposed concurrent sentences of six
years of imprisonment on the first count of illegal sexual contact with a victim
and eleven years of imprisonment followed by nine years of special parole on the
second count. Id. In December 2018, Plaintiff filed a new motion to correct illegal
4

sentence.

Id. at ¶ 1(q).

A judge denied the motion on the ground that the

argument raised by Plaintiff did not challenge his sentence but rather his
underlying conviction and should have been raised in a habeas petition. Id.
In his notices/letters to the Court, Plaintiff references changes that the
Connecticut legislature made to Conn. Gen. Stat. § 54-125e, which governs
various aspects of special parole, that became effective October 1, 2018, and
changes that the Connecticut legislature made to various special parole and
parole discharge statutes, including Conn. Gen. Stat. § 54-125e, that became
effective October 1, 2019. See Notices, Doc. Nos. 16-17.
B.

Standard of Review

Pursuant to 28 U.S.C. § 1915A(b), the Court must review prisoner civil
complaints against governmental actors and “dismiss ... any portion of [a]
complaint [that] is frivolous, malicious, or fails to state a claim upon which relief
may be granted,” or that “seeks monetary relief from a defendant who is immune
from such relief.” Id. The Court applies this standard of review “to all civil
complaints brought by prisoners against governmental officials or entities
regardless of whether the prisoner has paid [a] filing fee.” Shakur v. Selsky, 391
F.3d 106, 112 (2d Cir. 2004) (internal quotation marks and citation omitted). In
undertaking this review, the court is obligated to “construe” complaints filed by
pro se prisoners “liberally and interpret[] [them] to raise the strongest arguments
that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)
(internal quotation marks and citation omitted).
5

Rule 8 of the Federal Rules of Civil Procedure requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although detailed allegations are not
required, a complaint must include enough facts “to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks and citations omitted).

A complaint that

includes only “‘labels and conclusions,’ ‘a formulaic recitation of the elements of
a

cause

of

action’

or

‘naked

assertion[s]’

devoid

of

‘further

factual

enhancement,’” does not meet the facial plausibility standard. Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).
C.

Discussion

Plaintiff contends that the judge’s imposition of the period of special parole
in addition to the eleven-year term of imprisonment violated the Double Jeopardy
Clause of the Fifth Amendment and was excessive in violation of the Due Process
Clause of the Fourteen Amendment. See Am. Compl. at 2, 4, 8 ¶¶ 1b, 1j, 1u. The
Court liberally construes Plaintiff’s claim that his sentence is excessive as a
claim under the Eighth Amendment, made applicable to the states by the
Fourteenth Amendment.

See U.S. amend. VIII (“Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.”);

Robinson v.

California, 370
6

U.S.

660,

666

(1962).

In his Notices/Letters to the Court, Plaintiff contends that changes in
Connecticut statutes governing periods of special parole and discharge on parole
prior to the completion of a term of imprisonment suggest that the imposition of
the period of special parole violated his rights under the Double Jeopardy Clause
of the Fifth Amendment and under the Equal Protection Clause of the Fourteenth
Amendment. See Notice, Doc. No. 16, at 1; Notice, Doc. No. 17, at 3. Plaintiff also
challenges the conditions to which a parolee must agree to abide by during his or
her release on parole as violative of the Due Process Clause of the Fourteenth
Amendment. See Am. Compl. at 9-10 ¶ 1x.
1.

Challenge to Period of Special Parole

Plaintiff seeks monetary damages to compensate him for having been
illegally sentenced to a period of special parole. He also seeks an order that the
Court to vacate the nine-year period of special parole that he must serve after he
serves the eleven-year term of imprisonment imposed by a judge during his resentencing on March 14, 2018. Am. Compl. at 10.
a.

Monetary Relief

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that:
[I]n order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
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invalidated is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction has already been
invalidated.
Id. at 486-87 (footnote omitted).

Any determination by this Court that the

imposition of the term of special parole during Plaintiff’s resentencing in March
2018 violated the Double Jeopardy Clause of the Fifth Amendment, the Equal
Protection Clause of the Fourteenth Amendment or the Cruel and Unusual
Punishments Clause of the Eighth Amendment would necessarily imply the
invalidity of Plaintiff’s sentence. There are no facts to suggest that Plaintiff’s
current sentence consisting of a term of imprisonment of eleven years followed
by a nine-year period of special parole has been invalidated or overturned in state
court. As such, Heck bars Plaintiff’s request for monetary damages based on a
challenge to his period of special parole as violative of Fifth, Eighth and
Fourteenth Amendments.

The request for monetary damages is dismissed

without prejudice. See 28 U.S.C. § 1915A(b)(1).
b.

Injunctive Relief

Plaintiff asks the Court to vacate the nine-year period of special parole that
he must serve after he serves the eleven-year term of imprisonment imposed by a
judge during his re-sentencing on March 14, 2018.

Am. Compl. at 10.

The

Supreme Court has consistently held that “a prisoner in state custody cannot use
a § 1983 action to challenge ‘the fact or duration of his confinement[]’” and must
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seek relief by filing a “federal habeas corpus . . . or appropriate state relief
instead” after exhausting available state remedies. Wilkinson v. Dotson, 544 U.S.
74, 78 (2005) (internal parentheses omitted) (quoting Preiser v. Rodriguez, 411
U.S. 475, 489 (1973) and citing Wolff v. McDonnell, 418 U.S. 539, 554
(1974); Heck, 512 U.S. at 481; Edwards v. Balisok, 520 U.S. 641, 648 (1997)). In
Wilkinson, inmates challenged the constitutionality of administrative decisions
denying them parole eligibility. The Supreme Court concluded that the inmates
could pursue their claims under section 1983 rather than in a habeas petition
because they did not seek an “injunction ordering ... immediate or speedier
release into the community” and “a favorable judgment [would] not ‘necessarily
imply the invalidity of [their] conviction[s] or sentence[s].’” 544 U.S. at 82.
Here, Plaintiff challenges the term of special parole that a judge imposed in
conjunction with his sentence of eleven years of imprisonment.

The request

seeking to invalidate the period of special parole imposed during his resentencing in March 2018 must be pursued in a petition for writ of habeas corpus
under to 28 U.S.C. § 2254 in this court or through a petition or motion filed in
state court.

See, e.g., Conley v. Alexander, No. 3:18-CV-294 (VAB), 2020 WL

1514834, at *3 (D. Conn. Mar. 30, 2020) (“A challenge to the plaintiff’s sentence
and request for release from the term of special parole must be made in a petition
for writ of habeas corpus under 28 U.S.C. § 2254.”) (citations omitted).
The Court will not construe this action as a federal habeas petition,
however, because Plaintiff does not allege that he has fully exhausted his
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available state court remedies as to the Constitutional challenges to the period of
special parole imposed in addition to the eleven-year term of imprisonment.
Plaintiff asserts that he filed a motion to correct illegal sentence in December
2018 to challenge his March 14, 2018 sentence but a judge denied the motion on
the ground that his claim was a challenge to his conviction and not to his
sentence and needed to be raised in a state habeas petition. Plaintiff does not
allege that he appealed the denial of the motion to correct illegal sentence or that
he filed a state habeas petition.2

The claim for relief seeking to vacate the nine-

year period of special parole imposed during his re-sentencing on March 14, 2018
is dismissed without prejudice. See 28 U.S.C. § 1915A(b)(1).

The State of Connecticut Judicial Branch reflects that on April 8, 2014,
Plaintiff filed a state habeas petition in the Connecticut Superior Court for the
Judicial District of Tolland challenging his convictions and sentences for two
counts of sexual contact with a child on the ground of ineffective assistance of
trial counsel. See Peacock v. Warden, State Prison, Docket No. TSR-CV144006142-S (Pet. Writ Habeas Corpus, Docket Entry 101.00); Peacock, 2016 WL
7742925, at *1-3. On November 30, 2016, a judge denied the petition. See
Peacock, Docket No. TSR-CV14-4006142-S (Mem. Decision, Docket Entry 117.00);
Peacock, 2016 WL 7742925, at *3. On May 22, 2018, the Connecticut Appellate
Court affirmed the decision denying the habeas petition. See Peacock v. Comm'r
of Correction, 182 Conn. App. 901, 184 A.3d 339 (2018). Plaintiff did not file a
petition for certification to appeal the decision of the Connecticut Appellate Court
to the Connecticut Supreme Court. See Peacock, Docket No. TSR-CV14-4006142S. On June 13, 2018, Plaintiff filed a second state habeas petition. See Peacock
v. Comm’r of Correction, Docket No. TSR-CV18-4009586-S. On December 5, 2018,
a judge entered a judgment of dismissal. There is no indication that Plaintiff
appealed the judgment of dismissal. On January 14, 2020, Plaintiff filed a third
state habeas petition. See Peacock v. Comm’r of Correction, Docket No. TSRCV20-5000501-S. That petition remains pending. Information pertaining to these
state habeas petitions is available at: http://www.jud.ct.gov/judt.htm under
Superior Court Case Look Up, Civil/Family/Housing/Small Claims, By Docket
Number, using TSR-CV14-4006142-S; TSR-CV18-4009586-S; TSR-CV20-5000501S. (Last visited May 25, 2020).
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2

2.

Challenge to Conditions of Parole

Peacock claims that the requirement that an inmate must agree to certain
conditions of his or her parole that are contained on a Board of Pardons and
Paroles form prior to being released by the Department of Correction on parole
violates the Due Process Clause of the Fourteenth Amendment. Am. Compl. at 9.
He asks the Court to ensure that neither the state court nor the board of parole
impose conditions requiring supervision. Id. at 10.
Connecticut General Statutes § 54-124a(a)(1) provides in relevant part:
“There shall be a Board of Pardons and Paroles within the Department of
Correction, for administrative purposes only.” Section 54-124a(f), in relevant
part, grants the Board the “independent decision-making authority to ... (2)
establish conditions of parole or

specific parole supervision

...”

Further,

Connecticut General Statutes § 54-126 authorizes the Board to “establish such
rules and regulations as it deems necessary, upon which such convict may go
upon parole, and the panel for the particular case may establish special
provisions for the parole of a convict.”
Connecticut General Statutes § 54-125e governs the conditions, violations,
duration and disposition of special parole. Under section 125e(b)(2), “[t]he Board
of Pardons and Paroles may require that a person who is sentenced to a term of
imprisonment of more than two years followed by a period of special parole
“comply with the requirements of Connecticut General Statutes § 53a-30(a),”
recommended by the court at sentencing. Further, “[a]ny person sentenced to a
11

period of special parole shall also be subject to such rules and conditions as may
be established by the Board of Pardons and Paroles or its chairperson pursuant
to” Connecticut General Statutes § “54-126.” 3
Peacock states that one of the conditions that an inmate must agree to
prior to release on parole is that he or she may be subjected to undergoing a
polygraph test at any time during the period he or she is on parole. Am. Compl.
at 9. If a parolee refuses to take a polygraph test, he or she may be found in
violation of a term of his or her probation and returned to prison.

Id. at 10.

Peacock believes such a condition is illegal because polygraph results are not
reliable and cannot be used in court. Id. at 9.
Peacock asserts this claim generally and does not make specific
allegations regarding any terms or conditions of parole that may have been
imposed on him by a court or a parole officer or the Board of Pardons and
Paroles.

The Court concludes that Plaintiff lacks standing to challenge the

conditions that Director of Parole and Community Services Haggan, Board of
Pardons and Paroles Chairman Giles or Unit Manager Mirto might impose on
inmates, including himself, when released on parole.
Under Article III, Section Two of the United States Constitution, the
jurisdiction of federal courts is limited to certain “Cases” and “Controversies.”
U.S. Const. art. III, § 2. This restriction on federal jurisdiction requires a party to

Given the discretion afforded to the Board of Pardons and Paroles under
these statutes to set or establish conditions of parole, it is evident that a parolee
has no liberty interest in the type of condition or conditions that may or may not
12
3

have standing---"the requisite personal interest that must exist at the
commencement of the litigation.” Friends of Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks and
citations omitted).
“To establish Article III standing, an injury must be ʻconcrete, particularized
[in that it affects the plaintiff in a personal and individual way], and actual or
imminent; fairly traceable to the challenged action; and redressable by a
favorable ruling.’” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (quoting
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). Thus, the injury
may not be speculative and “allegations of possible future harm” are insufficient.
Id. (citations and internal quotation marks omitted). Only when the “threatened
injury” is “certainly impending” will it “constitute injury in fact.” Id.
Courts have consistently held that a pro se litigant does not have standing
to sue on behalf of other litigants. See Singleton v. Wulff, 428 U.S. 106, 114 (1976)
(“Ordinarily, one may not claim standing in this Court to vindicate the
constitutional rights of some third party”) (internal quotation marks and citations
omitted); Hollingsworth v. Perry, 570 U.S. 693, 707–08 (2013) (“[i]n the ordinary
course, a litigant must assert his or her own legal rights and interests, and cannot
rest a claim to relief on the legal rights or interests of third parties”) (internal
quotation marks and citation omitted); Am. Psychiatric Ass'n v. Anthem Health
Plans, Inc., 821 F.3d 352, 358 (2d Cir. 2016) (“Another prudential [limit on standing

be imposed by the Board.
13

is the] principle is that a plaintiff may ordinarily assert only his own legal rights,
not those of third parties.”). In addition, a litigant in federal court has a right to
act as his own counsel pursuant to 28 U.S.C. § 1654, but a non-attorney has no
authority to appear as an attorney for others. See United States ex rel. Mergent
Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008) (“[A]n individual who is not
licensed as an attorney may not appear on another’s behalf in the other’s
cause.”); Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)
(Section 1654 “does not allow for unlicensed laymen to represent anyone else
other than themselves”) (internal quotation omitted).
Thus, Plaintiff may not assert claims on behalf of anyone other than
himself. Accordingly, to the extent that the plaintiff attempts to assert claims on
behalf of other inmates who have been or may be released on parole subject to
certain conditions, those claims are dismissed. See 28 U.S.C. § 1915A(b)(1).
At the time of the allegations asserted in the amended complaint, Plaintiff
had not been released on parole. Furthermore, Plaintiff does not allege that prior
to filing this action, any defendant had imposed conditions on a term of parole or
special parole that he would serve in the future.

Thus, Plaintiff has not alleged

that, as of the filing of the amended complaint, he had suffered an injury that was
actual or imminent, was caused by the defendants or could be redressed in this
action. Whether Plaintiff might suffer an injury in the future due to the imposition
of any conditions to be followed after being released on parole by Director of
Parole and Community Services Haggan, Board of Pardons and Paroles
14

Chairman Giles, Unit Manager Mirto or a parole officer within Unit Manager
Mirto’s office, is speculative. The plaintiff does not, therefore, have standing to
bring a claim to challenge the nature of the conditions of parole that he claims are
often imposed on parolees and might be imposed on him by one or more of the
defendants. Absent Article III standing, the court lacks subject matter jurisdiction
over the conditions of parole claim that is personal to Plaintiff and is asserted
under the Due Process Clause of the Fourteenth Amendment.

The claim is

dismissed without prejudice. See 28 U.S.C. § 1915A(b)(1).
ORDERS
The Court enters the following orders:
(1)

The Motion for Leave to File a Second Amended Complaint, [Doc. No.

18], is DENIED on the ground that under Rule 15(a)(2), Fed. R. Civ. P. it would be
futile to permit Plaintiff to file an amended complaint to add a claim that is not
asserted against any named defendant and to add a request for relief that is
moot.
The claim asserted in the amended complaint, [Doc. No. 14], that the
imposition of a period of special parole in addition to a term of imprisonment
constituted a separate sentence in violation of the prohibition against double
jeopardy under the Fifth Amendment, was excessive in violation of the Cruel and
Unusual Punishments Clause of the Eighth Amendment, made applicable to the
states through the Due Process Clause of the Fourteenth Amendment, and
violated the Fourteenth Amendment’s Equal Protection Clause and the claim
15

asserted in the amended complaint, [Doc. No 14], pertaining to conditions of
parole that might be imposed on Plaintiff or other inmates in the future as
asserted under the Due Process Clause of the Fourteenth Amendment, are
DISMISSED without prejudice under 28 U.S.C. § 1915A(b)(1). Because the Court
has dismissed all federal claims, it declines to exercise supplemental jurisdiction
over any state law claims. See 28 U.S.C. § 1367; Lundy v. Catholic Health Sys. of
Long Island, Inc., 711 F.3d 106, 117-18 (2d Cir. 2013).
(2)

The Clerk is directed to enter judgment for the Defendants and close

this case.
SO ORDERED at Hartford, Connecticut this 5th day of June, 2020.
___________/s/___________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE

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